Criminal Defense of Immigrants


§ 2.13 H. Illegal Re-Entry Exposure

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Deported persons who come back into the United States illegally commit a federal felony offense, carrying a maximum from two to 20 years in federal prison.  The offense is fairly simple: all the government has to prove is that you were present in the United States without permission after suffering a prior deportation.  If the person has an aggravated felony prior conviction (as many do whose aggravated felonies trigger their deportation in the first place), the prior conviction increases the statutory maximum prison sentence to 20 years.[7]  The aggravated felony conviction also triggers a sentence enhancement, i.e., an increase in the Base Offense Level for the illegal re-entry conviction, under the United States Sentencing Guidelines.  The chief area in which this issue arises is a prosecution for illegal re-entry after deportation, in which the Guidelines formerly provided for up to a 16-level increase for defendants with one aggravated felony conviction suffered prior to deportation, and now provide for a graduated schedule of level increases depending on the nature and seriousness of the aggravated felony.[8]  If the deported husband comes back, the family has some criminal exposure for harboring an illegal alien, or transporting an illegal alien within the United States, or for aiding and abetting or accessory after the fact or concealment of the crimes of the husband.  It is impossible lawfully to get a Social Security card, driver’s license, or a job without proof of lawful status.

[7] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[8] USSG § 2L1.2(b)(1)(A).